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LEGAL DEFINITIONS IN CRIMINAL CASES
The term "felony" is a crime for which the punishment is
for a prison term of one year or longer (typically in a
state prison, not a county or municipal jail). Some
serious felonies (e.g., murder) can carry the death penalty
in states that still have the ultimate punishment.
Misdemeanors are typically crimes for which the maximum
punishment is possibly incarceration for one year or less.
Some states call for jail terms in the local jail, while
others call for it in the state system. Most states
categorize DUI/DWI offenses as misdemeanors, except possibly
where the DUI/DWI is a "repeat" offense, or where a death
or serious injury from a DUI-related accident causes the
DUI/DWI to be upgraded to a felony.
A contract between an attorney and his or her client.
Typically in some written form, retainers can be oral.
The payment of money to the attorney as a "retainer" signifies
an agreement for the attorney to act on the person's behalf
and to represent the person in the legal matter that is
the subject of their "contract". In many criminal
cases, a retainer is a partial payment toward the
ultimate, total fee that may be due in the event the case
requires certain hearings, trial or possibly an appeal.
To avoid confusion on the exact terms and schedule of other
payments, retainer agreements should be in writing in virtually
A form of a plea in a criminal case or traffic case in which
(instead of say "I am guilty"), the person is basically
saying, "I will not 'contest' or defend the charge against
me". Sometimes called by its shorthand name, "nolo",
the availability of this type of plea is often controlled
by state statute. In DUI/DWI cases, it is not unusual
that a "nolo" plea is unavailable in all or some situations
(e.g., an underage driver arrested for DUI/DWI may not be
eligible for a nolo contendere plea.) Furthermore,
a "nolo contendere" plea is nearly universally counted as
a DUI/DWI offense, for license suspension purposes and for
mandatory minimum punishment enhancement purposes.
A legal document authorized by state statute, usually issued
by a police officer directly to the person being "charged"
with some minor offense (usually a traffic violation) identifying
the nature of the accused offenses. A citation usually
identifies a date, location and time to appear in court
to answer charges. More serious crimes (and sometimes
even traffic offenses) are "charged" in a more formal document
either called an accusation, an indictment,
an information or a complaint. In issuing
citations on less serious offenses (i.e., a "moving
violation" such as speeding) police officers rely upon
the majority of cited drivers to appear at court when and
where requested. The alternative would be to make
a physical arrest of the person and possibly the posting
of cash bail or use of a bondsman or property
bond to post bail. A person's failure to appear
(FTA) in court to answer a citation typically results
in an arrest warrant being issued for the "no show"
party. In most states, a "failure to appear" (FTA)
triggers a notice to the state driver's license agency (i.e.,
DMV, DPS, BMV, RMV, SOS,
or DOT) to revoke or suspend the person's license
until the "citation" has been handled.
The form of charging document that a prosecutor uses to
identify each specific type of crime alleged to have been
committed. An accusation is typically several "counts"
(separate offenses) that identify, in general terms, how,
when and in what fashion the offense was committed.
In DUI/DWI practice, a person might be accused in alternative
"counts" of an accusation with (1) DUI-alcohol (drunk driving),
(2) DUI-per se (being above the state's alcohol blood level),
(3) DUI-drugs [impairment from prescribed or illegal (i.e.,
cocaine) drugs], AND (4) DUI-alcohol AND
drugs, by being under the combined impairing effects of
both alcohol and some type of drug.
See accusation. The term 'information' is used in
some states to describe the detailed accusatory instrument
that the prosecutor uses to bring the formal charges against
you. In most jurisdictions, no grand jury is required
to hear the underlying charges for an 'information'.
The prosecutor's staff drafts these charging documents,
after a full review of the evidence collected by the law
enforcement officers at the time of arrest (or investigation
of an alleged crime, if not done immediately after the offense
See the definitions under accusation and information.
The word 'complaint' is another term-of-art used by some
jurisdictions. A complaint is also the starting document
in civil litigation, where monetary damages are being sought,
or a divorce is being sought, etc.
A method of accusing a person of crimes, usually felonies,
wherein a group of citizens are convened to hear the prosecution's
evidence against a person in some sort of alleged criminal
charges. A grand jury is a holdover from English common
law, and is set forth in statutory and constitutional provisions
of your state's laws. An indictment is either reported
out of the Grand Jury as a "true bill" (meaning they are
charging the person with the crimes set forth in that document,
or as a "no bill", which means that the group of grand jurors
did not find sufficient, credible evidence that the crimes
alleged to have been committed REALLY were committed.
A judge usually has the option of jailing a convicted offender
or may sentence to some or all of the potential jail time
on "probation". The basic tenet of "probation" is
that the offender (who has been given a chance to avoid
straight jail time by the sentencing judge) will not get
into additional trouble during the period of the probation
term. If so, a "probation revocation" may occur.
While on probation, the offender must report to and stay
in touch with a probation officer to assure that the judge's
orders are complied with.
When a judge has permitted an accused person who either
pleads guilty or is FOUND guilty at trial to NOT GO TO JAIL
for some portion of the sentence handed down, the judge
sets conditions under which the person can stay out of incarceration.
The failure of the probationer to follow the judge's "conditions"
can and usually does lead to a "probation revocation".
Typically, the person is seized (arrested) first.
Thereafter, on a fixed schedule of that judge, the violator
is given a day in court to explain or challenge the "violation".
Individuals who are on probation no longer enjoy all the
constitutional protections that he or she had BEFORE the
guilty (or nolo contendere) plea or guilty verdict at trial
was rendered. For example, the 'standard of proof'
in a criminal trial is the HIGHEST in the world: proof
beyond a reasonable doubt. In a probation
revocation, depending on the state you are facing a revocation
in, it is either preponderance of the evidence or
probable cause to believe that a violation has occurred.
for "failure to appear") When a person is issued a
traffic citation, accusation, information or complaint and
then does NOT show up for court on the stated date and time,
the judge will usually order any bond to be forfeited to
the court system. Most of the time one or all of the
following ADDITIONAL sanctions will occur to a person who
fails to appear: (1) the drivers license will be suspended
or revoked, leaving the person exposed to being jailed for
driving on a suspended license, if stopped again for any
traffic offense or at a roadblock; (2) a warrant or contempt
citation can be issued, and the police can then go pick
up the person and incarcerate the person UNTIL a new court
date is given; and (3) in some states (such as South Carolina)
that have an INTEGRATED licensing and auto insurance system,
the automobile insurance carrier will be notified of the
license suspension, and the policy may then be cancelled.
Copyright © 1996-2004 William C. Head
- A Georgia DUI Attorney
All Rights Reserved. No Copying, Duplication or Reproduction
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